International Court Interview

JANA WENDT: Professor Schabas, if I could start with you, what crimes would fall within the jurisdiction of the ICC?

PROFESSOR WILLIAM SCHABAS, NATIONAL UNIVERSITY OF IRELAND: The new court will be able to prosecute genocide, crimes against humanity and war crimes and, at some future date, if a definition is agreed upon, the crime of aggression.

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JANA WENDT: And how would prosecutions be initiated?

PROFESSOR WILLIAM SCHABAS: There are three ways a prosecution can be initiated. Prosecution can be initiated by the Security Council of the United Nations essentially assigning a case to the prosecutor. It can be initiated by a state that has joined the court submitting a case to the prosecutor and it can be submitted by the prosecutor, acting on her or his own initiative, deciding to take a case before the court.

JANA WENDT: You mentioned that the crime of aggression is yet to be defined. Have nations then signed up to be prosecuted for crimes that have no definition?

PROFESSOR WILLIAM SCHABAS: Well, there will be a chance for states to agree eventually upon the definition of aggression. The whole court will have to – in other words, all the countries who are part of the court – are going to have to agree to this and, if they don`t, they can drop out of the court. So nothing is going to be imposed upon anybody against their will with respect to aggression. As for the other crimes – genocide, crimes against humanity and war crimes – they have extremely detailed definitions that go on for pages and pages in the documents of the court.

PROFESSOR MADELINE MORRIS, DUKE UNIVERSITY: There is a problem though that Professor Schabas began to touch on a little bit with the issue of definitions and new crimes, including aggression and any other crimes that might later be included within the jurisdiction of the court. The treaty says that the states that are parties to the treaty, those that have joined the court, will have the ability, if they don`t like the definition of aggression, to opt out of the jurisdiction of the court. The court won`t be able to exercise jurisdiction over citizens of that state that doesn`t accept the definition of aggression. They`ll be exempted from that crime. But that won`t be true, strangely enough, for states that are not parties to the treaty. So those states that have chosen not to become part of the court at all, not to participate in the ICC, will nevertheless, under the terms of the treaty at least, be subject to that court exercising its authority, prosecuting nationals of that non-party state for a crime that that state has never had any participation in agreeing to the definition of and, indeed, may not agree with the definition of.

JANA WENDT: So, Professor Morris, specifically, can you give us an example of how that might work – that a state that is not party to this treaty may see itself falling under the court`s jurisdiction in the way that you describe?

PROFESSOR MADELINE MORRIS: Well if I, an American, national of a state that`s not a party to the ICC treaty, go to a state that is a party, France, and allegedly commit a crime, then, because France is a treaty and the alleged crime was committed on JW French territory, then the ICC would have jurisdiction.

JANA WENDT: Professor Schabas, this sounds like a glaring anomaly in the treaty. What do you say?

PROFESSOR WILLIAM SCHABAS: Well, it`s not. I think it`s a phoney issue that`s being raised. This isn`t a case of prosecuting states. It`s a case – and the example Madeline Morris gave is a good one – it`s a case of prosecuting individuals. No state is going to be prosecuted by the International Criminal Court. If Madeline Morris goes to France and commits a crime under French law, she`s going to be prosecuted by the French courts. All that`s happened is that France has decided to join an international court and give that court the power to prosecute crimes that it can already prosecute no matter who commits them, whether it`s an American or anybody else. So there`s nothing outrageous or extraordinary about this. The point is that states, of course, have to sign up to the court, so France is going to sign up for crimes committed on its territory and by its nationals, and the US isn`t, so that means that, if you commit a war crime on the US territory, unless you`re a national of a state that`s part of a court, the court won`t be interested in you.

JANA WENDT: Professor Schabas, let`s turn to the countries that have ratified. Only a third of the world`s countries have. Missing from the list are Russia, is China, India. There are hardly any Arab states. So far, no Israel and certainly, as we`ve discussed, no United States. How workable is the ICC going to be if so many front-line states have not ratified?

PROFESSOR WILLIAM SCHABAS: It`s probably likely that some of these big players like China and the United States and Israel will sit outside the court for some time to come. But they did that with the human rights treaties too and it didn`t stop the human rights treaties being a great success. China and the United States are still only half in to the international human rights treaty system, so it`s not a surprise that they`re not part of it and it`s not going to compromise the working of the court. Obviously, it would be better to have them all in there but we know that will take some time.

PROFESSOR MADELINE MORRIS: Well, I think the question can be posed in two different ways. If you define success in terms of having states become parties, then we can play the numbers game and compare numbers of participants in different treaties. But there`s the underlying issue of how successful the court will be in achieving its purposes. That is, how much effect will this court have on reducing the incidence of these horrific crimes that the court is aimed at pursuing? You know, the usual sorts of calculus that we would apply to criminal deterrents – what motivates criminals, what might stop them from committing a crime – probably does not apply in the same way for the political mass-scale violent crimes that we`re talking about here, when an individual, a political leader, pursues a course of armed conflict, genocide, crimes against humanity, the stakes are extremely high. Somebody who loses in that gamble is very likely to end up killed, is very likely to have a catastrophic end, at which point the prosecution before the ICC would be the least of their problems. The post-World War II trials in Nuremberg, the more recent ad hoc tribunals set up by the UN Security Council for the Former Yugoslavia and Rwanda. The effects have not been great. We`ve seen continued atrocities, certainly since World War II, in many regions of the world. And, within the former Yugoslavia and Central Africa, we`ve seen continued war crimes and various atrocities, even while the tribunals for those regions were ongoing.

JANA WENDT: Professor Schabas, might Hitler and Stalin have stayed their hand if they knew that the ICC was watching?

PROFESSOR WILLIAM SCHABAS: I mean, this is, as Madeline Morris says – there`s a lot of speculation here. It`s like looking at, every time a murder`s committed in a country saying, “Well, that proves that the criminal justice system doesn`t work, because murders took place.” What we`re really looking for are improvements and these are very difficult things to measure. I think that, probably, what would be useful to know and to realise is that, with 69 states who have joined the International Criminal Court and 139 who signed the treaty, there are obviously a lot of them who think it`s going to work. I`m not talking about, you know, the angels from Scandinavia and Iceland and Canada and New Zealand and countries like this. I`m talking about countries with civil wars going on like the Democratic Republic of Congo, or Macedonia, or Uganda, or Cambodia and so on. And what is really quite astounding is that these countries are joining the court as well. So they seem to believe that it`s going to do some good.

JANA WENDT: One of the expressed concerns about the ICC is that, in some cases, it may override national sovereignty. Let me put to you an example. Let`s imagine that the ICC was in operation when the Mandela Government in South Africa decided not to opt for criminal prosecutions over apartheid-era crimes and decided instead to go for a Truth and Reconciliation Commission. Could the ICC override the government`s decision and prosecute those responsible for apartheid crimes?

PROFESSOR WILLIAM SCHABAS: In that hypothesis, yes, it could. It`s possible. We don`t know whether it will or not because I think the conventional wisdom is that the prosecutor of the ICC would take the view that, if there was an acceptable process of accountability, like a Truth Commission, then the prosecutor would simply direct energies elsewhere, to other countries and other atrocities. But it is fair to say that we might very well have a prosecutor who thinks that the Truth Commission was a bad idea and would want to teach the South Africans a lesson. So it could go either way on this.

PROFESSOR MADELINE MORRIS: I think there`s a different set of problems relating not so much to the term `sovereignty`, which I think is a problematic term, but to the issue of democratic governance. We`ve looked at the democratic credentials of international organisations, international institutions like the World Trade Organisation. But the ICC has escaped, strangely, has escaped that kind of scrutiny. I think the focus has been elsewhere on the severity of the crimes, but I think we need to take a very close look at whether, in these international governance structures that we`re constructing, whether we`re being careful enough to make sure that the democratic credentials of these institutions are very clearly in place.

PROFESSOR WILLIAM SCHABAS: I think this is a red herring. This is not a serious issue. The states that are joining the court are, by and large, democratic states and it`s their democratically elected representatives who are doing it. I frankly know of no other way to create an international criminal court, unless it`s done by what is a plainly undemocratic method which is the fiat of the UN Security Council, which is how it was done in the past, in the case of Yugoslavia and Rwanda. To say that it`s unfair to prosecute a national of a state that hasn`t agreed to it, is no more correct than to say it would be unfair for Australia to prosecute a national of another state who commits a crime on the territory of Australia and that`s a preposterous juncture.

PROFESSOR MADELINE MORRIS: No, that`s not true, Bill, no.

PROFESSOR WILLIAM SCHABAS: The United States, who are the main protagonists – the main proponents of this argument, this is a country that has probably the broadest view of criminal jurisdiction in the world. They`re the only country in the world who has an acting, a formerly acting head of state who`s now locked in jail. I`m talking about the former president of Panama. They have a very broad view of jurisdiction. Most other countries are far more careful and they`ve transferred that careful approach to jurisdiction to the International Criminal Court.

JANA WENDT: As a non-lawyer, as a lay person, let me put to you something that appears to be an anomaly. Even though apparently reservations are prohibited under the terms of this treaty, France, for instance, is claiming the right not to be prosecuted for war crimes for a set period of time. How can a country opt in or out of prosecution. Professor Schabas?

PROFESSOR WILLIAM SCHABAS: Well, that`s allowed by the statute. One of the articles in the statute says that, in the case of war crimes, a country can opt out, and it was a very definite concession that was made to the French to get them onside when the treaty was adopted back in 1998, and they`re the only country that`s actually – of the 69 who`ve ratified the statute, France is the only one to have made such a declaration, so it`s really, it`s ugly, but it`s of marginal significance and I think, on a practical level, it won`t be very important because, if French nationals or if crimes are committed on French territory which rise to the horror that is likely to interest a prosecutor of the tribunal, they`re almost certainly going to be crimes against humanity and France hasn`t opted out of crimes against humanity.

JANA WENDT: Professor Morris, let me turn to you on this one. Australia has, after a lively debate within the Government, decided to go ahead and ratify, but with the proviso that it makes its own declaration, which states that no prosecution can go ahead without Australia having had the full opportunity to investigate or to prosecute. Does this have any meaning in the context of the operations of the court?

PROFESSOR MADELINE MORRIS: If the ICC finds that the state`s investigation or prosecution has been inadequate or not genuine, then the ICC can take that case and go forward with it, regardless of what Australia or any other state may think about the matter. So the ultimate decision-making power rests with the court. So any implication in the Australian declaration that the ultimate decision would rest with Australia, or with the Attorney-General, through a certification process would be untrue.

JANA WENDT: Professor Schabas, do you see it the same way?

PROFESSOR WILLIAM SCHABAS: Yes, I think that`s fairly accurate. My impression of the Australian declaration is that it`s for political purposes, that it`s to satisfy people who are concerned about the loss of sovereignty, but anybody who studies the declaration and who knows about the law, any legal adviser who was giving people advice on this matter will say I think what Madeline Morris has just said and she`s absolutely right on that point.

JANA WENDT: OK, I regret to say we have to leave it there.